BRYANT v. HAGEL et al
ORDER granting 21 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 9/29/2017 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
No. 5:15‐CV‐196 (CAR)
CHUCK HAGEL, Secretary,
United States Department of Defense, :
Defense Logistics Agency,
ORDER ON MOTION FOR SUMMARY JUDGMENT
Presently before the Court is Defendant’s Motion for Summary Judgment.
Plaintiff Orlando Bryant contends Defendant terminated him, subjected him to a hostile
work environment, and retaliated against him because of his race, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”).
After fully considering the matter, the Court finds Defendant is entitled to judgment as
a matter of law on each of Plaintiff’s claims, and thus, Defendant’s Motion for Summary
Judgment [Doc. 21] is hereby GRANTED.
STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”1 A genuine issue of material
fact only exists when “there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.”2 Thus, summary judgment must be granted if
there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving
party or, in other words, if reasonable minds could not differ as to the verdict.3 When
ruling on a motion for summary judgment, the Court must view the facts in the light
most favorable to the party opposing the motion.4
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact” and that entitle it to a judgment as a matter of law.5 If the moving party
discharges this burden, the burden then shifts to the nonmoving party to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact.6 This evidence must consist of more than mere conclusory allegations or
1 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
3 See id. at 249‐52.
4 Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
5 Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted).
6 See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324‐26.
7 See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
Plaintiff, an African American male, contends his Caucasian supervisor targeted
him for termination to fulfill his supervisor’s stated goal to “lighten up” the workforce
since Plaintiff was a probationary employee and thus easy to terminate. To achieve his
goal, Plaintiff contends his supervisor engaged with other managers and co‐workers to
“arrange” Plaintiff’s termination. Plaintiff filed this action alleging Defendant
unlawfully terminated him based on his race, subjected him to a racially hostile work
environment, and contested his unemployment benefits in retaliation for filing an Equal
Employment Opportunity (“EEO”) complaint.
Defendant denies all allegations and contends it legitimately terminated Plaintiff
due to his lack of work ethic and harassment of a co‐worker; did not subject him to a
racially hostile work environment; and merely exercised its legal right to contest his
unemployment benefits. The facts, taken in the light most favorable to Plaintiff as the
nonmoving party, are as follows:
From January 18, 2011, until his termination on September 22, 2011, Plaintiff was
a civilian probationary employee of the Defense Logistics Agency (“DLA”). Plaintiff
was employed as a distribution process worker in the DLA Distribution Center, and his
duties included making pallets, driving forklifts, and loading and unloading trucks.
When hired, Plaintiff understood he was a probationary employee. Per regulation, the
probationary period is the time period that “[t]he agency shall utilize . . . as fully as
possible to determine the fitness of the employee and shall terminate his services during
this period if he fails to demonstrate fully his qualifications for continued
Plaintiff worked in the Consolidation and Containerization Point Division
(“CCP”). Robert Stewart (Caucasian) was Chief Director of the CCP Division. Under
Stewart were two supervisors, Jack Rose and Linette George. Under each supervisor
was a work lead who served as the leader of a team of distribution process workers.
During the relevant time period, Plaintiff’s supervisor was Linette George (African
American), and Plaintiff’s work leads were Chip Blunt (African American) and C.M.
On June 30 2011, Plaintiff’s supervisor, Linette George, completed a midterm
evaluation of Plaintiff.9 The evaluation was mostly positive, stating that Plaintiff
performs all tasks, exhibits a dedicated work ethic, exhibits dependability, and engages
in team duties.10 However, George also documented that Plaintiff “needs to exercise
professionalism more often,” and while she had “seen improvement in conduct,” she
encouraged Plaintiff to “keep moving ahead in the right direction.”11
In August 2011, Stewart, who “made it a habit to walk out of [his] office onto the
floor at any given time to see how things were going,” observed “more than once”
5 C.F.R. § 315.803(a).
Pl.’s Performance Rating dated June 30, 2011 [Doc. 35‐9, pp. 27‐28].
Id. at p. 27.
Id. at p. 28.
Plaintiff and another co‐worker Darrell Smith (African American) sitting in chairs.12
When Plaintiff and D. Smith noticed Stewart watching them, they would “get out of the
chair and go get with the rest of the team and work.”13 Stewart spoke with Plaintiff and
D. Smith’s supervisor, Linette George, about his observations and told George to watch
On August 19, Plaintiff met with Stewart and complained that he felt harassed by
George, as she was “constantly on [his] back about everything,” “looking for [him], and
singl[ing] him out” from “everyone” else.15 Stewart memorialized this meeting in a
Memorandum for Record (“MFR”) stating the following:
[Plaintiff] was not very specific when pressed about what Ms. George did
that led him to believe she was singling him out, other than the leads had
asked what she might have against him.
I reiterated the need to work as a team and that the supervisors and leads
have authority and responsibility for what happens on the floor; that I
expected everyone to work together. I also stressed the need for each to
respect the other.
I told him I would look into his concerns and get back to him.
NOTE: I have observed [Plaintiff] on the floor and have expressed my
concerns that he is not working to the level of our other employees. I often
find him either on a forklift or standing to the side engaged in
conversation. Until last week (when I pressed Ms. George) I did not
usually see [Plaintiff] helping build pallets.
Stewart Depo., p. 93 [Doc. 35‐8].
Id. at p. 94.
Pl. Depo, pp. 31‐33.
In addition, I have received a number of complaints that [Plaintiff] does
not fully engage with the team in the pallet build process, that when there
is a need for help, he is often not where he should be. When speaking to
one of the work leads, he commented that he normally has to go find
[Plaintiff] once he gives [Plaintiff] a task to do. I have asked the
supervisors to stay on top of this issue, which is the reason Ms. George
has spent so much attention to [Plaintiff].
As to [Plaintiff’s] complaint that Ms. George is “out to get him”; this is
untrue and without merit. Ms. George is doing what I expect of a
supervisor, when I observe and make note of my concerns on an
employee, and [Plaintiff] is not unique in having supervisory attention.
[Plaintiff] is a probationary employee and I have my concerns about
retaining him beyond his probationary period. I have gotten feedback
from team members and from outside of the team that he stirs the pot.
[. . .]
Ms. George is doing exactly what I expect of her, and I have expressed by
concerns about the negative impact [Plaintiff] has had on the team and as
a probationary employee, he is a candidate for termination under the
probationary program. She has paid closer attention to [Plaintiff], trying to
given him ample opportunity to prove he should be retained past his
Plaintiff states after he complained to Stewart, George removed him from forklift duty
and required him to retrieve scrap metal, a strenuous manual labor position.17
Eventually, Plaintiff asked Ms. George why she was harassing him, and Plaintiff states
George told him it was because she wanted to get a promotion.18
Around this same time in August, Stewart learned of animosity between
distribution process employee Steve Jackson (African American) and several of his co‐
Stewart’s MFR, dated Aug. 19, 2011 [Doc. 21‐1, pp. 29‐30].
Pl. Depo., p. 41 [Doc. 23].
Id. at p. 31.
workers, including Plaintiff and D. Smith—animosity that, as reported to Stewart, had
been steadily progressing since June. Around August 16, 2011, Jackson complained to
his supervisor Linette George, and then later to Stewart, that his co‐workers, specifically
naming Plaintiff and D. Smith, had been harassing him, calling him names, making
comments about him in front of co‐workers, and calling him a “snitch” for his
discussions with management.19 In the MFR dated August 19, Stewart documented his
knowledge at that time of Plaintiff’s alleged harassment of Jackson:
Steve Jackson came to me this morning complaining that [Plaintiff] and
other employees were taunting him and picking on him. The supervisors
have already spoken to [Plaintiff] and two weeks ago I handed out the
depot’s Violence in the Workplace Policy letter and stressed the need to be
respectful of each other; we do not taunt or pick on other members. 20
Thus, on August 19, 2011, Stewart held a meeting for all CCP employees
regarding the DLA’s violence in the workplace policy, which prohibited conduct that
created the potential for a hostile environment, which Stewart interpreted to include
harassing other employees.21 Stewart printed off copies of the policy for the employees
to take with them.22 Because so many copies of the policy were left in the room, Stewart
held another meeting regarding the policy on August 20th, wherein he stressed there
was an absolute zero tolerance for workplace violence.23
Stewart Depo., pp. 62‐63; Jackson Decl., Ex. J‐2, [Doc. 21‐3, pp. 5‐6].
Stewart’s MFR, dated Aug. 19, 2011 [Doc. 21‐1, pp. 29].
Stewart Depo., p. 26.
Stewart Depo., pp. 63‐64.
Id. at p. 65.
Despite these two meetings, Jackson relayed to Stewart that Plaintiff and others
continued to harass him. On August 22nd, Jackson was on his way to Linette George’s
office when he states he clearly heard Plaintiff call him a “snitch.”24 The next day, on
August 23rd, Jackson complained to his work lead Charlie Blunt “that this crap needs to
stop and it needs to stop now[.]”25 Jackson told Blunt he was “getting sick and tired of
[D. Smith] and [Plaintiff] [making] harassing remarks toward [him],” that Blunt
“need[ed] to fix this,” and that Jackson could “not take it anymore.”26
In response to Jackson’s complaints, a meeting was held on August 23rd between
Plaintiff, Jackson, D. Smith, their work leads (Charlie Blunt and C.M. Smith), and their
supervisors (Jack Rose and Linette George).27 Stewart was not present at the meeting,
but he was given a written summary of the meeting by Jack Rose and Linette George.
The written summary provided that the meeting was held
to address concerns over employee harassment. [Jackson] expressed to
[Blunt] that [D. Smith] and [Plaintiff] were calling him “snitch” and giving
him other unwanted conversation. [Jackson] claimed he asked [Plaintiff]
to stop messing with him since he was not in a joking mood. [Plaintiff]
denied he said anything to [Jackson] and thought [Jackson] was lying
about his claim.28
The supervisors warned all present that “harassment in the workplace will not be
tolerated and received full verbal acknowledgement and commitment from all
Jackson Decl., Ex. RS‐11 [Doc. 21‐2, p. 26].
Id.; Pl. Depo, p. 46.
Summary dated August 23, 2011, Ex. RS‐14 [Doc. 21‐2, p. 32].
employees of the organizational expectations.”29 Plaintiff states he never harassed
Jackson, and he certainly did not continue to harass him after the August 23 meeting.
However, Jackson told Stewart that the harassment did not cease.
On August 25, 2011, Jackson made a statement to a co‐worker that involved
bringing a gun to work. Jackson said he stated, “if you keep kicking a dog, he’s gonna
bite your ass that why people get mad + shoot up the place”30; others who witnessed the
incident stated Jackson said he was “pushed to limit, I have lost my self respect I’m
going to get my pistol and shoot up everything”31; and that “he should come in to work
with a pistol and shoot this MFer up.”32 Regardless, Jackson’s statements were
interpreted as a terroristic threat. Jackson was escorted from the property by security
and later discharged the same day as Plaintiff.33
Robin’s Air Force Base Security Forces responded to the terroristic threats
incident. Per protocol, the officers took statements from Jackson and four witnesses by
Stewart was home sick on August 25 and was informed by telephone of
Jackson’s terroristic threats. When Stewart returned on August 26, he began an
investigation into the incident to determine what led Jackson to make the terroristic
Jackson Decl., Ex. RS‐11 [Doc. 21‐2, p. 26].
Statement from Thomas James [Doc. 21‐2, p. 11].
Statement from Alexander White [Doc. 21‐2, p. 16].
Stewart Depo., p. 97. [Doc. 35‐8].
threats. Between August 25 and August 29, Stewart retrieved the Form 1168 witness
statements taken by Robin’s Air Force Base Security Forces, and Stewart received a
statement from Jackson detailing the harassment he endured from Plaintiff and D.
Smith. Stewart states he also asked Plaintiff and D. Smith to give statements, but they
refused; Plaintiff and D. Smith both state Stewart did not ask them for a statement.
On August 29, four days after the terroristic threats incident, Stewart initiated
proceedings to terminate Plaintiff and other probationary employees he felt contributed
to the incident that took place with Jackson.34 Stewart sent an email to DLA Human
Resources with the following documents attached to determine if those documents
provided sufficient documentation for termination: the Form 1168 witness statements
taken by Robin’s Security Forces; the typed statement from Jackson detailing his
harassment and the terroristic threats incident; the summary of the meeting between
Plaintiff, Jackson, D. Smith and their supervisors on August 23rd; and Stewart’s MFR
dated August 19, 2011, wherein Stewart documented his concerns about retaining
Plaintiff because “he stirs the pot.”35
Meanwhile, Stewart continued to investigate the terroristic threats incident. On
September 2, an unidentified female employee told Stewart that Plaintiff and D. Smith
Email chain dated August 29 and 30, 2011 between Stewart, Baker DLA CIV HUMAN
RESOURCES, and Mundis DLA CIV HUMAN RESOURCES, Stewart Decl., Exs. RS‐10‐14 [Doc.
21‐2, pp. 25‐33]; see also Stewart Decl. [Docs. 35‐9, p. 18].
“had been giving her a hard time, picking on her.”36 The female employee, however,
was reluctant to provide a written statement. She also told Stewart that when she
confronted Plaintiff and D. Smith, they stopped bothering her.37 Stewart memorialized
his conversation with the female employee in an MFR, and he forwarded the MFR to
Human Resources by email on September 9th.38
On September 7, Stewart spoke with and received a statement from Michael
Greene, a co‐worker of Plaintiff’s, who specifically named Plaintiff and D. Smith as
“harassers.”39 Stewart forwarded Greene’s statement by email to Human Resources. In
the email Stewart wrote:
I received this today from one of my employees. We spoke and he related
to me that after [Plaintiff] and Darrel Smith were counseled about picking
on Steve Jackson, that they were upset that a “dude” would complain.
From our discussion and Mr. Greene’s statement, it appears that these two
individuals did not take seriously what there were being told about
taunting and picking upon another team mate.40
Six days later, on September 13, 2011, Stewart formally requested authority to
terminate Plaintiff and D. Smith. 41 In the disciplinary action request form, Stewart
MFR dated Sept. 2, 2011, Stewart Decl., Ex. RS‐9 [Doc. 21‐2, p. 22].
Email from Stewart to Mundis DLA CIV HUMAN RESOURCES dated Sept. 9, 2011, Stewart
Decl., Ex. RS‐8 [Doc. 21‐2, p. 21].
Handwritten statement from M. Greene, Stewart Decl., Ex. RS‐6 [Doc. 21‐2, p. 19].
Email from Stewart to Mundis DLA CIV HUMAN RESOURCES dated Sept. 7, 2011, Stewart
Decl., Ex. RS‐5 [Doc. 21‐2, p. 18].
CSO‐N Pre‐Action Interview Checklist and Disciplinary Action Request Form Email from
Stewart to Mundis DLA CIV HUMAN RESOURCES dated Sept. 13, 2011, Stewart Decl., Ex. RS‐
15 [Doc. 21‐2, pp. 33‐39].
memorialized his belief that “both engaged in harassing and intimidating behavior that
violates the DLA violence in the Workplace Policy.”42 Stewart further wrote that he had
received complaints about “their lack of effort in their work” and “’drama’ created by
two of team members” Stewart believed to be Plaintiff and D. Smith. 43 Moreover,
Stewart documented that after Plaintiff and D. Smith were counseled about harassment
in the meeting on Aug. 23rd, he believed they “did not take the message seriously,” as
“[t]hey openly mocked the counseling and tossed veiled threats at [Jackson]. The next
day Steve Jackson made the comments he made about bringing a gun to work.”44
Because Stewart believed Plaintiff and D. Smith did not take the counseling seriously,
he recommended termination because he “believe[d] they [would] not respond
positively to other forms of discipline designed to improve behavior.”45
The disciplinary action request form contains a section for the employee to
provide an explanation and sign the form. Plaintiff says Stewart neither asked him for
an explanation nor required him to sign the form.
On September 21, Stewart received six responses to the questionnaire Stewart
gave to employees as part of his investigation, wherein he asked if they had witnessed
any harassment of Jackson or personally experienced any harassment. One employee
responded he had witnessed no harassment; three responded they had heard about
Disciplinary Action Request Form, Stewart Decl., Ex. RS‐15 [Doc. 21‐2, p. 37].
Jackson’s harassment, but did not personally witness any harassment; one responded
he had witnessed an employee making statements about Jackson, but not directly to
Jackson; and a female employee stated she had personally experienced harassment by
Plaintiff and D. Smith.46
Also on September 21, Stewart received a follow‐up statement from M. Greene
wherein he stated he “had not personally witnessed either Darrell Smith or [Plaintiff]
harass or make harassing comments directly to Steve Jackson.”47 Greene clarified that he
“never heard either D. Smith or [Plaintiff] call S. Jackson a snitch! [He] heard only what
other people on the floor say what they heard concerning the situations, just gossip!”48
On September 22, 2011, Stewart terminated Plaintiff. Plaintiff’s termination letter
This action is being affected because you have been disruptive and created
conflict within the workplace by taunting and spreading stories about co‐
workers. Additionally, I personally observed you loafing and not
performing your duties. Floor supervisors, Jack Rose and Linette George
met with you on August 23, 2011, in order to address complaints received
from the work force regarding your behavior and lack of production.
After the counseling, a witness informed me you openly mocked it, which
leads me to believe that you did not take it seriously.
These incidents together indicate a non‐productive and antagonistic
attitude, which has ruined the morale of this workforce; therefore, this
type of behavior will not be tolerated. Your behavior has caused your co‐
workers to feel intimidated and harassed. In accordance with DLA
Instruction 7213, dated September 24, 2009, it is DLA’s policy to promote a
Questionnaire Responses, Stewart Decl., Ex. RS‐16 [Doc. 21‐2, pp. 40‐45].
M. Greene’s continuance of previous statement, Stewart Decl., Ex. RS‐7 [Doc. 21‐2, p. 20].
safe environment for its employees, from violence, threats of violence,
harassment, intimidation and other disruptive behavior; therefore, all
reports of such incidents will be taken seriously. This Agency is entitled to
expect all employees to conduct themselves in accordance with acceptable
standards. Since you have failed to do so, it is my decision that you should
be terminated during your probationary period.49
Following Plaintiff’s termination, Defendant received two letters from Plaintiff’s
work leads, Charlie Blunt and C.M. Smith, supporting Plaintiff and contesting his
termination. On September 23, Blunt wrote a letter stating that he believed Plaintiff
“ha[d] been unjustly terminated.”50 He further stated that “[w]hile working under
[Blunt’s] supervision [Plaintiff’s] work had been above and beyond reproach. Whenever
called upon to work over, [Plaintiff] ha[d] always be[en] available and always
performed his duties immaculately.”51
On October 5, C.M. Smith wrote a letter stating Plaintiff “performed his work
with diligence,” and he “repeatedly witnessed [Plaintiff’s] professionalism in his
attitude, appearance, and outstanding job performance.”52 Moreover, Smith expressed
his beliefs that Jackson could not be trusted, that Plaintiff’s termination was a “grave
injustice,” and he felt “this was an arranged termination taken by some of the CCP’s
Termination Letter, Stewart Decl., Ex. RS‐17 [Doc. 21‐22, p. 46].
Letter from C. Blunt dated Sept. 23, 2011, Stewart Depo., Ex. 17 [Doc. 35‐9, p. 29].
Letter from C.M. Smith dated Oct. 5, 2011, Stewart Dep., Ex. 15 [Doc. 35‐9, p. 24].
management team to accommodate their personal and not professional choices at an
Plaintiff believes Stewart targeted him and D. Smith for termination based on
their race. Plaintiff states Stewart demonstrated racial animosity towards African
American employees in the CCP Division. Stewart would “often” comment that the
DLA’s workforce was “too dark” or “too black,” in need of being “lightened up,” and
that Stewart intended to “change the color around here.”54 Two of Plaintiff’s co‐
workers, Darrell Smith and Jesse French (African American), also stated Stewart
“frequently” mentioned the work environment was “too dark” and in need of
Plaintiff recounted a time when Stewart instructed him and several of his African
American co‐workers to turn off the music they were listening to by an African
American rap artist because Stewart “didn’t want to hear none of that Snoop Dogg
shit”; however, Stewart allowed some Caucasian employees to continue listening to
their music.56 D. Smith and French also recalled this incident, and French states Stewart
referred to the music as “jungle music.”57
Pl.’s Decl., ¶ 5 [Doc. 35‐2].
French Decl., ¶5 [Doc. 35‐6]; D. Smith’s Decl., ¶ 5 [Doc. 35‐5].
Pl. Decl., ¶ 6 [Doc. 35‐2].
French Decl., ¶6 [Doc. 35‐6].
Several of Plaintiff’s co‐workers identified other alleged racial incidents with
Stewart. D. Smith stated Stewart commented he heard Stewart say there were “too
many monkeys” comprising the work force, and he knew Stewart refused to put up a
picture of President Obama where there had previously been one of Georgia W. Bush.58
D. Smith recounted a time when he and another co‐worker picked up Stewart for work
one morning, and Stewart refused to sit in the backseat, instead commanding Smith to
sit in the back “where [he] belong[ed].”59
French stated Stewart was “particularly demeaning” in how he addressed French
and other African American employees in comparison to their “Caucasian
counterparts.”60 Plaintiff’s work lead C.M. Smith said that Stewart would treat Plaintiff,
D. Smith, and French with negative actions and feedback; speak to them in a
condescending and demeaning tone; and delegate to them more difficult and
physically‐strenuous tasks as opposed to Caucasian employees.61 Stewart would even
ask Smith to write up Plaintiff, but Smith did not because he believed Plaintiff had done
After Plaintiff’s termination, he filed a complaint with the EEO alleging racial
discrimination. Thereafter, Plaintiff filed for unemployment benefits with the State of
D. Smith Decl., ¶ 5 [Doc. 35‐5].
French Decl., ¶ 6 [Doc. 35‐6].
C.M. Smith Decl., ¶ 6 [Doc. 35‐7].
Id. at ¶ 7.
Georgia, which Defendant contested. Plaintiff did not receive any benefits. After
receiving his right to sue letter from the EEO, Plaintiff filed this action alleging
Defendant terminated him based on his race, subjected him to a racially hostile work
environment, and contested his unemployment benefits in retaliation for Plaintiff filing
an EEO Complaint. Defendant has now moved for summary judgment on each of
Plaintiff’s claims against Defendant are based on alleged violations of Title VII.
Title VII makes it an unlawful employment practice for an employer “to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.”63 When a
plaintiff, like the one here, offers circumstantial evidence to prove a Title VII claim, the
claim is evaluated under the burden‐shifting framework developed in McDonnell
Douglas Corp. v. Green.64 First, the plaintiff must establish a prima facie case, or “facts
adequate to permit an inference of discrimination.”65 If the plaintiff does so, the burden
then shifts to the employer to articulate some legitimate, non‐discriminatory reason for
42 U.S.C. § 2000e‐2(a)(1).
411 U.S. 792 (1973).
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
the challenged adverse employment action.66 If the employer meets this burden, the
plaintiff then has an opportunity to show that the employerʹs proffered reasons for the
adverse employment action were merely pretext for discrimination.67
Plaintiff contends Defendant unlawfully terminated him because of his race.
Defendant, however, maintains race had nothing to do with Plaintiff’s termination, as
Stewart legitimately terminated Plaintiff, a probationary employee, based on his
disruptive and harassing behavior in the workplace that created conflict amongst his
co‐workers, his harassment of Jackson, Stewart’s observations of Plaintiff “loafing” on
the job, and Stewart’s belief that Plaintiff did not take the warnings of his behavior
A. Prima Facie Case
To establish a prima facie case of discriminatory termination, Plaintiff must show
he (1) is a member of a protected class; (2) suffered an adverse employment action; and
(3) was treated less favorably than a similarly situated individual outside his protected
class or was replaced by a person outside of his protected class.68 Plaintiff clearly meets
the first two elements. Because the record contains evidence that after Plaintiff, Jackson,
66 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
67 Id. at 253.
68 Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
and D. Smith were discharged69 they were replaced by two Caucasian men,70 the Court
finds Plaintiff meets his prima facie case of discriminatory termination. 71 Therefore, the
burden now shifts to Defendants to articulate a legitimate, nondiscriminatory reason for
B. Legitimate Nondiscriminatory Reasons
The burden on Defendant for providing legitimate nondiscriminatory reasons for
Plaintiff’s termination is one of production, not persuasion, and Defendant needs only
produce credible evidence supporting the decision.72 Here, Defendant gives two reasons
for Plaintiff’s termination: 1) he had poor work ethic, and 2) he was “disruptive and
created conflict within the work place by taunting and spreading stories about co‐
workers.”73 These are certainly reasons “that might motivate a reasonable employer.”74
Thus, Defendant has met its “exceedingly light” burden of producing a legitimate non‐
D. Smith was terminated a few days after Plaintiff because he was not present at the
workplace on Sept. 22nd. Stewart Depo., p. 97.
See Stewart Depo., p. 97; French Decl., ¶ 5 [Doc. 35‐6].
Defendant objects to the admissibility of the identity of the two Caucasian men French
identifies in his Declaration. On summary judgment the Court can consider evidence that can be
reduced to admissible form at trial. Roswell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005).
Defendant makes no objection that this evidence cannot be reduced to admissible form at trial.
Thus, the Court will consider it.
72 Chapman, 229 F.3d at 1024 (“However, the employerʹs burden is merely one of production; it
need not persuade the court that it was actually motivated by the proffered reasons. It is
sufficient if the defendantʹs evidence raises a genuine issue of fact as to whether it discriminated
against the plaintiff.” (internal quotation marks omitted)).
Termination Letter, Stewart Depo., Ex. 9 [Doc. 35‐9, p. 16].
74 Chapman, 229 F.3d at 1030.
discriminatory reason for Plaintiff’s termination, and the burden now shifts to the
Plaintiff to establish these reasons are merely pretext for race discrimination. 75
To establish pretext, a “plaintiff must demonstrate that the proffered reason was
not the true reason for the employment decision.... [The plaintiff] may succeed in this
either directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employerʹs proffered
explanation is unworthy of credence.”76 “[I]f the employer proffers more than one
legitimate nondiscriminatory reason, the plaintiff must rebut each of the reasons to
survive a motion for summary judgment.”77 “Conclusory allegations of discrimination,
without more, are not sufficient to raise an inference of pretext or intentional
discrimination where [an employer] has offered ... evidence of legitimate, non‐
discriminatory reasons for its actions.”78 Evidence establishing pretext may include the
same evidence initially offered to establish the prima facie case of discrimination.79
75 Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769‐770 (11th Cir. 2005).
76 Jackson v. State of Ala. State Tenure Commʹn, 405 F.3d 1276, 1289 (11th Cir. 2005) (internal
quotation marks and citation omitted).
77 Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007).
78 Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (internal quotation marks
and citation omitted).
79 Wilson v. B.E. Aerospace, 376 F.3d 1079, 1088 (11th Cir.2004).
“A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory
reasons or substitute his business judgment for that of the employer.”80 The pretext
inquiry centers around the employer’s beliefs, and Plaintiff must show more than the
proffered reasons were ill‐founded.81 Specifically, if “the proffered reason is one that
might motivate a reasonable employer, an employee must meet that reason head on and
rebut it, and [he] cannot succeed by simply quarreling with the wisdom of that
Plaintiff attempts to demonstrate pretext by showing Defendant’s reasons for
Plaintiff’s termination are unworthy of credence. Plaintiff theorizes that Stewart
“targeted” Plaintiff and D. Smith for termination to fulfill his goal of “lightening up”
the workforce since they were probationary employees and thus easy to terminate.
Plaintiff contends his termination “was arranged” by management.
Plaintiff argues a reasonable jury could believe his theory because (1) no
evidence exists showing Plaintiff exhibited poor work ethic or poor performance, and
(2) a reasonable jury could find Stewart conducted a biased investigation into Jackson’s
terroristic threats with the intent to implicate Plaintiff. The Court disagrees. As set forth
below, Plaintiff’s arguments are ultimately based on personal beliefs and opinions,
80 Chapman, 229 F.3d at 1030.
81 See Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010).
82 Chapman, 229 F.3d at 1030; see also Nix v. WLCY Radio/Rehall Communications, 738 F.2d 1181,
1187 (11th Cir. 1984) (“[An] employer may fire an employee for a good reason, a bad reason, a
reason based on erroneous facts, or for no reason at all, as long as its action is not for a
speculation, and mere disagreement with Stewart’s decision. Plaintiff fails to rebut
Stewart’s legitimate, non‐discriminatory reasons for terminating Plaintiff.
Plaintiff first argues Stewart’s “lack of work ethic” reason for terminating
Plaintiff is unworthy of credence because (1) Plaintiff’s employment record lacks any
complaints, write‐ups, and disciplinary actions; and (2) statements from Plaintiff’s team
leads and co‐workers praising Plaintiff’s work performance and work ethics, and
describing Stewart’s perceived favoritism toward “selective Caucasian counterparts”
establish Plaintiff exhibited superb work ethic.83 Plaintiff’s arguments, however, are
insufficient to create any issue of material fact regarding pretext. First, Plaintiff’s
midterm feedback at the end of June clearly identified issues with Plaintiff’s
professionalism and conduct that his supervisor Linette George instructed him to
improve upon. George specifically wrote that Plaintiff “needs to exercise
professionalism more often,” and while she had “seen improvement in conduct,” she
instructed Plaintiff to “keep moving ahead in the right direction.”84
Second, even assuming the admissibility of all of the statements submitted by
Plaintiff’s co‐workers and work leads, they are simply personal beliefs and opinions.
They do not rebut or contradict Stewart’s belief that Plaintiff exhibited a poor work
ethic. Stewart personally observed Plaintiff sitting in chairs not working. Moreover,
Stewart documented that he had received “a number of complaints that [Plaintiff] does
C.M. Smith Decl., ¶ 6 [Doc. 35‐7].
Pl.’s Midterm Feedback dated June 30, 2011 [Doc. 35‐9, pp. 27‐28].
not fully engage with the team in the pallet build process, that when there is a need for
help, he is often not where he should be.”85 Stewart spoke to “one of the work leads,
[and] he commended that he normally has to go find [Plaintiff] once he gives [Plaintiff]
a task to do.”86 The fact these co‐workers did not see Plaintiff loafing does not mean
Stewart did not observe Plaintiff loafing.
Plaintiff next attempts to prove pretext arguing Stewart conducted a biased
investigation surrounding the events of Jackson’s threats with the intent to implicate
Plaintiff. Plaintiff bases this argument on the following: (1) Stewart did not follow DLA
investigation and termination policies; (2) Stewart sought Plaintiff’s termination less
than four days after Jackson’s terroristic threats; (3) Stewart provided false documents
to human resources to support Plaintiff’s termination; and (4) Stewart deliberately
failed to consider information exonerating Plaintiff and deliberately misrepresented
documents to human resources.
Plaintiff’s arguments, however, are neither supported by the record nor sufficient
to rebut Stewart’s legitimate reasons for terminating Plaintiff due to his lack of work
ethic and harassment of a fellow employee. As to the first argument, although failure to
follow work policies can be evidence of pretext, the record contains no DLA policies or
regulations on Defendant’s investigation or termination procedures. Thus, although
Plaintiff and Stewart disagree as to whether Stewart asked Plaintiff to provide a
MFR dated August 19 [Doc. 21‐1, pp. 29‐30].
statement during his investigation of Jackson’s terroristic threats, no evidence exists
showing Stewart was required to obtain a pre‐termination interview of a probationary
employee. Therefore, the dispute of fact about whether Stewart obtained a statement
from Plaintiff is immaterial.
As to the second argument, no credible evidence supports Plaintiff’s theory that
Stewart “targeted” Plaintiff for termination on August 19—six days prior to the
terroristic threats incident—and then used the investigation into Jackson’s terroristic
threats merely as a means to tie Plaintiff to the terroristic threats incident to justify
termination. On the contrary, the record reflects Stewart’s documented concerns about
Plaintiff’s abilities to continue working and his decision‐making process to terminate
Plaintiff. In the August 19 MFR, Stewart documented his initial concerns “about
retaining [Plaintiff] beyond his probationary period.”87 Stewart continued that he had
“gotten feedback from team members and from outside of the team that [Plaintiff] stirs
the pot” and merely concluded that “Plaintiff is a candidate for termination under the
probationary program.”88 Stewart did not terminate Plaintiff until September 22, 2011.
In addition, that Stewart first sought Plaintiff’s termination on August 29—only
four days after the terroristic threats incident occurred—creates no triable issue on
Plaintiff’s theory that Stewart used the investigation merely to terminate Plaintiff
MFR dated August 19, 2011 [Doc. 21‐1, pp. 29‐30].
because of his race. By August 29, Stewart had observed Plaintiff “loafing,”89
documented complaints regarding Plaintiff’s work ethic,90 received a complaint from
Jackson that Plaintiff had been harassing him,91 received a summary from Plaintiff’s
work leads over the meeting with Plaintiff wherein they had to address “concerns over
employee harassment,”92 and received a statement from Jackson detailing the
harassment.93 No evidence contradicts or rebuts Stewart’s belief Plaintiff had been part
of the reason Jackson made the terroristic threats.
Plaintiff’s third argument—that Stewart knowingly provided human resources
with a falsified Form 1168 from Jackson to support Plaintiff’s termination—is
speculative and insufficient to show pretext. As part of this litigation, Sergeant Bostic,
one of the security officers that responded to the terroristic threats incident, reviewed
the Form 1168 statements taken by security and opines “that the Form 1168 completed
by Steve Jackson is not the original or that the original has been tampered with.”94
Bostic points out that in comparison to the other witness statements, Jackson’s 1168
Form does not have initialing by the Xs, the handwriting is cramped as it nears its
conclusion, the statement strays outside the form’s parameters, there is an absence of
the declarant’s signature, there is no written “//END OF STATEMENT//” at the end to
Summary dated August 23, 2011, Ex. RS‐14 [Doc. 21‐2, p. 32].
Jackson statement dated August 25, 2011, Stewart Decl., Ex. RS‐11 [Doc. 21‐2, pp. 25‐28].
Bostick Decl., ¶ 6 [Doc. 35‐3].
ensure nothing is later added, and the Acknowledgement of Offenses is not crossed
out.95 Bostic continues to state that “it is relatively easy to tamper with these forms, as
they are available for download from the internet, and it is a simple task to white out
the form’s content, either manually or by canning it and erasing the text
electronically.”96 Finally, Bostic states that “[t]hese statements are reviewed by the
Patrol man, and the on‐duty flight chief, and the Law enforcement desk, and this
statement would have been halted at any of those tiers because of the aforementioned
Even assuming Sergeant Bostic’s opinions are admissible, no evidence shows
Stewart knew Jackson’s Form 1168 statement was falsified when he provided it to
human resources. Bostic’s testimony simply indicates that Jackson’s Form 1168
appeared irregular, that the forms are easy to tamper with, and that Jackson’s form did
not appear to have been processed in accordance with standard procedures. No
evidence exists that Stewart had any familiarity or experience with the Form 1168 in
general such that he would have known the document was false and presented it to
human resources anyway.
Plaintiff’s remaining arguments that Stewart failed to consider documents and
information exonerating Plaintiff from any involvement with the terroristic threats
Id. at ¶ 8.
Id. at ¶ 9.
incident also fail to show pretext. Plaintiff argues that disciplinary request form Stewart
submitted to terminate Plaintiff was fraudulent because Stewart did not obtain a
statement from Plaintiff. However, as stated earlier, no evidence exists Stewart was
required to obtain a statement from Plaintiff. Plaintiff also contends Stewart did not
provide human resources with “exonerating” documents, pointing to M. Greene’s
September 21 follow‐up statement that he did not personally witness Plaintiff make any
harassing comments directly to Jackson.98 However, Greene’s statement does not
contradict his earlier statement naming Plaintiff as a “harasser” or Stewart’s belief that
Plaintiff was part of the harassment.
Finally, Plaintiff cannot establish any discrimination based on the “mosaic”
theory articulated in Smith v. Lockheed‐Martin Corporation.99 In Lockheed‐Martin, the
Eleventh Circuit reiterated that “establishing the elements of the McDonnell Douglas
framework is not, and was never intended to be, the sine qua non for a plaintiff to
survive a summary judgment motion in an employment discrimination case.”100 Rather,
the court noted that a plaintiff may present a triable issue if she establishes “a
convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.”101
M. Greene’s continuance of previous statement, Stewart Decl., Ex. RS‐7 [Doc. 21‐2, p. 20].
99 644 F.3d 1321 (11th Cir. 2011).
100 Id. at 1328.
Plaintiff has failed to establish any convincing “mosaic” from which a reasonable
jury could determine Stewart terminated Plaintiff because of his race. Plaintiff’s theories
that Stewart targeted probationary employees like Plaintiff for easy termination to
facilitate his goal to “lighten up” his workforce, and fraudulently conducted the
terroristic threats investigation to tie Plaintiff to Jackson’s harassment are simply that –
theories based on personal beliefs and opinions, conjecture, and speculation that
amount to mere disagreement with Defendant’s decision.
This Court does not sit as a “super‐personnel department,” and it does not
review the wisdom of an employer’s business decisions.102 Ultimately, Plaintiff does not
point out any real “weaknesses, implausibilities, inconsistencies, or contradictions”
showing Defendant’s legitimate non‐discriminatory reasons are pretext for race
discrimination. Therefore, based on the evidence presented, Plaintiff has failed to show
there was a genuine issue of material fact as to whether Defendant’s reasons for
Plaintiff’s termination were pretextual. 103 Because Plaintiff has failed to establish his
claim of race discrimination, Defendant is entitled to judgment as a matter of law on
102 See Alvarez, 610 F.3d at 1266‐67 (the “question is whether her employers were dissatisfied
with her for [ ] non‐discriminatory reasons, even if mistakenly or unfairly so”).
103 See Jackson, 405 F.3d at 1291 (granting summary judgment for the employer because plaintiff
failed to point “to evidence that created a genuine issue that the reasons that the Board gave
were false or that a discriminatory reason was more likely the cause of his termination.”)
Plaintiff also alleges Defendant contested his unemployment benefits in
retaliation for Plaintiff filing his EEO complaint. In addition, for the first time in his
response brief to Defendant’s Motion for Summary Judgment, Plaintiff contends
Defendant re‐assigned him from a forklift position to a manual labor position retrieving
scrap metal in retaliation for Plaintiff’s complaint to Stewart that his supervisor, Linette
George, was harassing him.
Title VII makes it illegal for “an employer to discriminate against any of his
employees ... because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.”104 Retaliation claims follow the same McDonnell Douglas burden‐shifting
framework outlined above.105 However, in order to establish a claim of retaliation
under Title VII, a plaintiff must prove (1) he engaged in statutorily protected activity,
(2) he suffered a materially adverse action, and (3) there is a causal relation between the
104 42 U.S.C. § 2000e–3(a).
105 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). Brown v. Ala. Depʹt of Transp., 597 F.3d 1160,
1181 (11th Cir. 2010). Although Plaintiff separately brings her retaliatory termination claims
under Title VII and Section 1981, as noted above, the Court’s analysis of claims under these
statutes is the same.
106 Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).
Moreover, it is up to the employee to prove that “the desire to retaliate was the
but‐for cause of the challenged employment action.”107 “This requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful
action or actions of the employer.”108 As explained below, Plaintiff cannot sustain his
A. Plaintiff’s Reassignment from Forklift Position
Plaintiff cannot sustain his new claim Defendant retaliated against him by re‐
assigning him from his forklift position to a manual labor position retrieving scrap
metal. In his Complaint, Plaintiff asserted only one retaliation claim for “the actions of
the Agency relating to Plaintiff’s termination and opposing his employment evidence
retaliation in violation of Title VII.”109 Moreover, in both his deposition and statement of
material facts, Plaintiff reiterated that his retaliation claim related solely to Defendant’s
opposition to the unemployment benefits.110 Plaintiff is barred from raising new claims
in a response brief, and his deadline for amending his complaint has long since
B. Defendant’s Opposition to Unemployment Benefits
107 Booth v. Pasco Cnty., Fla., 757 F.3d 1198, 1207 (11th Cir. 2014) (quoting Univ. of Tex. Sw. Med.
Ctr. v. Nassar, —U.S.—, 133 S. Ct. 2517, 2528, 186 L.Ed.2d 503 (2013)).
Nassar, 133 S.Ct. at 2528.
Pl.’s Amended Complaint, Count III, ¶ 28 [Doc. 6].
Pl. Depo., pp. 21 and 81[Doc. 35‐8]; Pl.’s Statement of Material Facts, ¶ 48 [Doc. 35‐1].
White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1200 (11th Cir. 2015).
Plaintiff’s claim that Defendant retaliated against him by opposing his
unemployment benefits also fails. Even assuming Defendant’s opposition to his
unemployment benefits constitutes an actionable adverse employment action, Plaintiff
fails to establish any retaliation was the “but‐for” cause of the denial of his benefits.
Plaintiff contends a genuine issue of material fact exists as to whether Defendant
retaliated against him because Darrell Smith, who was fired for the same reasons as
Plaintiff, filed his EEO complaint after seeking unemployment benefits, and Defendant
did not contest Smith’s unemployment benefits. Such conclusory evidence, however, is
insufficient to sustain this claim. The record does not contain all of the reasons why D.
Smith was terminated. Thus, Plaintiff’s fails to show Defendant’s opposition to his
unemployment benefits was anything other than an exercise of its legal rights and
duties under Georgia law.
Hostile Work Environment
Finally, Plaintiff asserts he was subjected to racial harassment from Stewart,
creating a hostile work environment. A hostile work environment claim is “established
upon proof that the workplace is permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.”112
112 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (international quotation
marks omitted) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).
For Plaintiff to recover on his hostile work environment claim, he must prove: (1)
that he belongs to a protected group; (2) that he has been subjected to unwelcome
harassment; (3) that the harassment was based on a protected characteristic; (4) that the
harassment was sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminative and abusive working environment; and (5) a
basis for holding the employer liable under either a theory of vicarious or direct
liability.113 Here, like most hostile work environment claims, Defendant argues that
even if the Court accepts all of Plaintiff’s evidence as admissible, Plaintiff is unable to
prove the harassment was sufficiently severe or pervasive to alter the terms and
conditions of employment. The Court agrees.
The severe or pervasive element of the hostile‐work‐environment claim contains
both a subjective and objective analysis. To satisfy these requirements, Plaintiff must
produce evidence from which a reasonable juror could conclude (1) Plaintiff
subjectively perceived his work environment to be hostile or abusive and (2) a
reasonable person would find the work environment hostile or abusive.114 Because
Defendant does not dispute that Plaintiff subjectively perceived a hostile work
environment, the Court will focus on the objective analysis.
In evaluating whether a reasonable person would find the work environment
hostile or abusive, the Court considers the following factors: “(1) the frequency of the
114 Miller, 277 F.3d at 1276.
conduct; (2) the severity of the conduct; (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee’s job performance.”115 The Court must
examine the alleged conduct collectively, “not as isolated acts, and determine under the
totality of the circumstances whether the harassing conduct is sufficiently severe or
pervasive.”116 Though there is no “magic number” of comments or behavior that must
be done to create a hostile work environment,117 mere offhanded comments and
“isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.”118
Considering this evidence in a light most favorable to Plaintiff and assuming all
of Plaintiff’s proffered evidence is admissible, the Court concludes Plaintiff cannot
establish a prima facie case of hostile work environment based on his race.
Plaintiff presents the following facts as evidence that “Stewart oversaw a
campaign to make [Plaintiff’s] work environment so harassing and abusive that the
terms and conditions of his employment were altered:”119 (1) Stewart’s request that
Plaintiff’s supervisor Linette George pay close attention to him; (2) his testimony that
Stewart and George deliberately gave Plaintiff conflicting directions while he was at
116 Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999).
117 Miller, 277 F.3d at 1269.
118 Faragher v. City of Boca Raton, 524 U.S. 775, 2283 (1998) (internal quotation marks omitted).
Pl.’s brief in response to Defendant’s Motion for Summary Judgment, p. 18 [Doc. 35].
work with the intention to make it appear Plaintiff was not on the worksite; (3)
Plaintiff’s removal from his position as a forklift operator to a manual labor position
retrieving scrap metal; (4) Stewart requiring Plaintiff and other African American
employees to stop playing music he called that “Snoop Dogg shit” and “jungle music”;
(5) observations from co‐employees that Stewart treated Plaintiff with constant negative
feedback and addressed Plaintiff with a condescending and demeaning tone; and (6)
statements from Stewart that the workplace was “too dark” and he wanted to “lighten
up” the workforce.
Even if the Court assumes all of Plaintiff’s evidence is admissible, it does not rise
to a level of frequent or severe necessary to support a showing of a hostile work
environment. First, other than his own perception Stewart was targeting him because
of his race, no evidence supports a finding that Stewart’s conduct identified in
Plaintiff’s first three facts ‐‐ (1) Stewart’s request that Plaintiff’s supervisor Linette
George pay close attention to Plaintiff; (2) Stewart and George deliberately giving
Plaintiff conflicting directions while he was at work with the intention to make it appear
Plaintiff was not on the worksite; and (3) Plaintiff’s removal from his position as a
forklift operator to a manual labor position retrieving scrap metal – was racially
motivated. Therefore, Plaintiff cannot rely on these incidents in support of his hostile‐
Thus, what remains of Plaintiff’s hostile work environment claim is based on
Stewart’s alleged racially‐charged comments. To sustain a hostile work environment
claim based on racial comments, the offensive conduct “must be so ‘commonplace,
overt and denigrating that [it] created an atmosphere charged with racial hostility.’”121
Stewart’s conduct fails to meet this standard.
Plaintiff personally experienced three incidents of racial hostility. First, Plaintiff
states he “often” heard Stewart comment that the DLA’s workforce was “too dark,” or
“too black,” in need of being “lightened up,” and Stewart intended to “change the color
around here.”122 When asked to specify how many times he heard Stewart say these
comments, Plaintiff stated “at least twice.”123 Second, Plaintiff states Stewart instructed
Plaintiff and his African American co‐workers to turn off their rap music because he
“didn’t want to hear none of that Snoop Dogg shit,” but Stewart allowed Caucasian
employees to continue listening to their music.124 Third, evidence supports a finding
See Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir. 2012) (only conduct that is
based on a protected category, such as race, may be considered in a hostile‐work‐environment
121 Hudson v. Norfolk Southern Ry. Co., 209 F.Supp.2d 1301, 1325 (N.D. Ga. 2001) (quoting EEOC v.
Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th Cir. 1990)).
Pl.’s Decl., ¶ 5 [Doc. 35‐2].
Pl. Depo., p. 55 [Doc. 23].
Pl.’s Decl., ¶ 6 [Doc. 23].
Stewart addressed Plaintiff and other African American employees in a condescending
and demeaning tone that Stewart did not use to address his Caucasian employees.125
Plaintiff also submits evidence of racial hostility experienced by some of his co‐
workers. D. Smith testified he heard Stewart comment there were “too many monkeys”
comprising his workforce; he knew Stewart refused to put up a picture of President
Obama; and he experienced a time when Stewart instructed D. Smith to sit in the
backseat of a car “where [Smith] belong[ed].”126 J. French testified he heard Stewart refer
to the Snoop Dogg music as “jungle music.”127 However, no evidence indicates Plaintiff
knew of these incidents. In order for conduct learned through hearsay to support a
hostile work environment claim, Plaintiff must have been “aware of the harassing
incidents at the relevant time.”128 The Eleventh Circuit has held that “a plaintiff’s
workplace circumstances do not include other employee’s experiences of which the
plaintiff is unaware.”129 Here, no evidence indicates Plaintiff knew of his co‐workers’
experiences until after he was terminated. Thus, Plaintiff cannot now rely on their
experiences, which he was unaware of, to create a hostile work environment.
Although the Court condemns the use of Stewart’s alleged racially‐charged
remarks, taking the evidence in its entirety, it cannot conclude the incidents experienced
C.M. Smith Decl., ¶ 6 [Doc. 35‐7].
D. Smith Decl., ¶ 5 [Doc. 35‐5].
French Decl., ¶ 5 [Doc. 35‐6].
128 Hudson, 209 F.Supp.2d at 1326‐27 (citing Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522
(11th Cir. 1995)).
129 Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250 (11th Cir. 2014)
by Plaintiff could lead a reasonable jury to conclude he suffered the type of severe and
pervasive sustained harassment that rises to the level of a hostile work environment
under Eleventh Circuit precedent.130 No evidence indicates Plaintiff heard any racial
slurs or epithets; saw any racist symbols or graffiti; encountered any racially insensitive
jokes; was subjected to an overall threatening or humiliating work environment based
on his race; or that Stewart’s conduct was so repeated and escalated as to be the
“centerpiece” of his claim.131 Plaintiff has also failed to show how his work environment
130 See Adams 754 F.3d at 1251‐54 (11th Cir. 2014) (finding that a reasonable jury could conclude
the conduct was severe or pervasive when Plaintiffs were subject to several offensive racial
slurs and experienced some type of harassing conduct “every morning, “every day,”
“regularly,” or “all the time”); Jones, 683 F.3d at 1299‐1302 (finding a genuine issue of material
fact where plaintiff was subjected to seven incidents of racial harassment – one racial remark
from a supervisor, four incidents of bananas found on his truck followed by coworkers wearing
shirts or hats bearing the confederate flag, and an intimidating confrontation with a coworker);
Guthrie v. Waffle House, Inc., 460 Fed. App’x 803, 803, 807‐808 (11th Cir. 2012) (finding that a few
dozen offensive comments or actions, including sexual comments and being grabbed in the
rear, spread over an eleven month time frame, though rude and boorish, fell short of severe and
pervasive harassment); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 812 (11th Cir. 2010)
(concluding there was a genuine issue of material fact when the sexually offensive remarks and
conduct occurred “every single day,” and was ignored over her repeated complaints); Miller,
277 F.3d at 1276 (holding that explicit racial name calling, which occurred three to four times a
day for a month, met the frequency requirement); see also Forson v. Columbia Farms Feed Mill, 34
F.Supp.3d 1302, 1305‐1307 (M.D. Ga. 2014) (granting summary judgment for the employer
because the twelve incidents of harassing remarks, 9 of which were racial, were more analogous
to the Adams’ Plaintiffs that did not meet the “severe or pervasive” requirement for hostile work
131 See Adams, 854 F. 3d at 1251‐55 (describing the conduct as sufficiently threatening and
humiliating harassment when Plaintiffs found a noose in the breakroom, saw racially offensive
graffiti multiple times in the bathroom, and was subjected to the daily presence of Confederate
flags on coworkers apparel); Jones, 683 F.3d at 1304 (“It is this escalation of incidents, with a
possibly threatening confrontation as its centerpiece, that makes the issue of racial harassment
... one for the trier of fact. Consequently, we believe that the increasing frequency and
seriousness of the harassment experienced by [Plaintiff] presents a jury question on the issue of
whether he endured a hostile work environment.”).
or discriminatory conduct had an unreasonably adverse effect on his job performance.
Thus, based on the evidence presented, no genuine issue of material fact exists with
respect to Plaintiff’s hostile work environment claim.
For the reasons stated above, the Court GRANTS Defendants’ Motion for
Summary Judgment [Doc. 22].
SO ORDERED, this 29th day of September, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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